September 9, 2010

Regulation Package # 0508-03

CDSS MANUAL LETTER NO. CWS-10-01

TO:

HOLDERS OF THE CHILD WELFARE SERVICES MANUAL, DIVISION 31 Effective 9/3/10

Regulation Package # 0508-03 Sections 31-003, 31-021, 31-410, and 31-501

This manual letter has been posted on the Office of Regulations Development website at http://www.dss.cahwnet.gov/ord/PG603.htm. In 2004, the California Department of Social Services (CDSS) was party to a lawsuit, Gomez v. Saenz, which alleged that individuals' names were submitted to the Child Abuse Central Index (CACI), a child abuse registry maintained by the California Department of Justice, without a right to challenge the placement, which the plaintiff alleged was a violation of due process guarantees of the California Constitution. In addition, the lawsuit challenged the accuracy of information retained on the CACI, alleging that a significant number of listings were maintained on the CACI without adequate underlying files to support the listing. This lawsuit was settled in October 2007 and as part of the agreement between the parties, CDSS agreed to amend current regulations to reflect the new grievance hearing procedures as required by the settlement. Pursuant to Penal Code Section 11169, an individual's name is submitted to the CACI whenever a county child welfare services agency determines that a child abuse and/or neglect (excluding general neglect) allegation regarding that individual is found to be inconclusive or substantiated. Prior to Gomez v. Saenz, individuals with due process by allowing them to dispute their listing on the CACI. The settlement agreement further stipulates that county CWD agencies are to furnish a request for grievance hearing and notice of listing on CACI forms to persons subject to listing on CACI. The stipulation to create regulations based on Gomez v. Saenz requires the adoption of a new section in the Manual of Policies and Procedures, Division 31 regulations. In addition, amendments to other portions of Division 31 were necessary to provide consistency and to accurately reflect the due process requirements pursuant to the Gomez v. Saenz settlement agreement.

Emergency regulations were adopted effective August 31, 2009 and were heard at a public hearing held on January 13, 2010. Subsequent to the public hearing, emergency regulations were revised and noticed for 15-days with no further revisions. This manual letter includes the revised emergency regulations. FILING INSTRUCTIONS Revisions to all manuals are indicated by a vertical line in the left margin. The attached pages are to be entered in your copy of the Manual of Policies and Procedures. The latest prior manual letter containing Child Welfare Services Manual changes was CWS-09-03. Page(s) 18.1 and 18.2 24.1 through 24.4 25 and 26 109.1 through 109.3 Attachment HF Replace(s) Pages 18.1 and 18.2 Pages 24.1 through 24.4 Pages 25 and 26 Pages 109.1 through 109.3

Regulations

CHILD WELFARE SERVICES PROGRAM GENERAL REQUIREMENTS

31-003 (Cont.)

31-003 (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) (p) (q) (r) (s)

DEFINITIONS FORMS

31-003

(Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (1) (2) SOC 826 (Rev. 8/09) Child Fatality/Near Fatality County Statement of Findings and Information. SOC 832 (Rev. 3/10) Notice of Child Abuse Central Index Listing, hereby incorporated by reference, is used for the purpose of notifying individuals that their name has been submitted to the Department of Justice (DOJ) for listing on the Child Abuse Central Index (CACI).

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-10-01 Page 18.1

Effective 9/3/10

31-003 (Cont.)

CHILD WELFARE SERVICES PROGRAM GENERAL REQUIREMENTS

Regulations

31-003 (3)

DEFINITIONS FORMS (Continued)

31-003

SOC 833 (Rev. 3/10) Grievance Procedures for Challenging Reference to the Child Abuse Central Index, hereby incorporated by reference, is used for the purpose of informing individuals of the requirements for requesting a grievance hearing, as well as providing information regarding timeframes and all required components of a grievance hearing. SOC 834 (Rev. 3/10) Request for Grievance Hearing, hereby incorporated by reference, is used for the purpose of providing individuals with a mechanism for requesting a grievance hearing to challenge their listing on the CACI.

(4)

(t) (u) (v) (w) (x) (y) (z)

(Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved) (Reserved)

NOTE: Authority cited: Sections 10553, 10554, and 10850.4, Welfare and Institutions Code. Reference: Gomez v. Saenz Settlement Agreement and Court Order, Case No: BC284896; Section 11169, Penal Code and Sections 827 and 10850.4, Welfare and Institutions Code and 42 USC 5106.

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-10-01 Page 18.2

Effective 9/3/10

Regulations

CHILD WELFARE SERVICES PROGRAM GENERAL REQUIREMENTS

31-021 (Cont.)

31-020

GRIEVANCE PROCEDURES (Continued)

31-020

.63

The county director's decision shall contain a summary statement of the facts, the issues involved, findings, and the basis for the decision. A copy of the decision shall be sent to the following: .641 .642 .643 Each party to the review. Every representative of each party. The California Department of Social Services.

.64

.7

Unless the child is in immediate danger, he/she shall remain with the foster parent(s), pending decision of the county director, when removal is the basis for a complaint. The review record shall be retained for one year from the decision date, and shall include all documents, copies of documents, and physical evidence accepted as review evidence.

.8

NOTE: Authority Cited: Sections 10553 and 10554, Welfare and Institutions Code. Reference: Section 16503, Welfare and Institutions Code.

31-021 .1

CHILD ABUSE CENTRAL INDEX (CACI) GRIEVANCE PROCEDURES

31-021

Within five (5) business days of submitting an individual's name to the Department of Justice (DOJ) for listing on the CACI pursuant to Section 31-501.4, the following forms shall be sent to the individual of his/her last known address: .11 .12 The Notice of Child Abuse Central Index Listing (SOC 832), Grievance Procedures for Challenging Reference to the Child Abuse Central Index (SOC 833), and' Request for Grievance Hearing (SOC 834).

.13 .2

Request for a Grievance Hearing .21 The complainant shall send by mail, fax or in person, a completed SOC 834 form, or a written request for grievance hearing that includes all of the information required under Section 31021.213, signed by the complainant to request a grievance hearing. This must be received by the county within thirty (30) calendar days of the date of notice. Failure to send the completed SOC 834 form or written request within the prescribed timeframe shall constitute a waiver of the right to a grievance hearing.

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-09-02 Page 24.1

Effective 8/31/09

31-021 (Cont.)

CHILD WELFARE SERVICES PROGRAM GENERAL REQUIREMENTS

Regulations

31-021

CHILD ABUSE CENTRAL INDEX (CACI) GRIEVANCE PROCEDURES (Continued) .211

31-021

For purposes of this section, a complainant is deemed aware of the county decision when the county mails the notification as specified in Section 31-021.1 to the complainant's last known address. For individuals to whom no prior notification was mailed regarding his or her submission to the CACI, the individual shall file the completed SOC 834 form within thirty (30) calendar days of becoming aware that he or she is listed in CACI and becoming aware o the grievance process. A completed SOC 834 form or a written request for grievance hearing shall include the referral number, name of county, complete contact information, date of birth, a reason for grievance which the complainant believes provides a basis for reversal of the county decision, and if represented, the name of the representative and contact information for the representative. The county shall assist the complainant in preparation of the request for grievance hearing, pursuant to section .213 above, if assistance is requested.

.212

.213

.214

.3

The following grievance hearing procedures shall only apply for challenges to county submission for listing individuals on the CACI. .31 A grievance hearing request shall be denied when a court of competent jurisdiction has determined that the suspected child abuse and/or neglect has occurred, or when the allegation of child abuse and/or neglect resulting in the referral to CACI is pending before the court. .311 If Section 31-021.31 no longer applies, a complainant can submit the completed SOC 834 form or written request within thirty (30) calendar days of the conclusion of the judicial matter to request a grievance hearing. Timeframes for conducting and completing a grievance hearing will remain as specified in Sections 31-021.4 through .85.

.312

.4

The grievance hearing shall be scheduled within ten (10) business days and held no later than sixty (60) calendar days from the date the request for grievance is received by the county, unless otherwise agreed to by the complainant and the county. .41 Notice of the date, time and place of the grievance hearing shall be mailed by the county to the complainant at least thirty (30) calendar days before the grievance hearing is scheduled, unless otherwise agreed to by the complainant and the county. The complainant may have an attorney or other representative present at the hearing to assist him or her.

.42

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-10-01 Page 24.2

Effective 9/3/10

Regulations

CHILD WELFARE SERVICES PROGRAM GENERAL REQUIREMENTS

31-021 (Cont.)

31-021

CHILD ABUSE CENTRAL INDEX (CACI) GRIEVANCE PROCEDURES (Continued)

31-021

.43

Either party may request a continuance of the grievance hearing not to exceed ten (10) business days. Additional continuance or dismissal of the hearing shall be granted with mutual agreement of all parties involved or for good cause. The county may resolve a grievance at any point by changing a finding of inconclusive or substantiated child abuse and/or neglect to unfounded and notifying the DOJ of the need to remove the individual's name from the CACI.

.44

.5

The grievance review officer conducting the grievance hearing shall be: .51 A staff or other person not directly involved in the decision, or in the investigation of the action or finding, that is the subject of the grievance hearing. Neither a coworker nor a person directly in the chain of supervision of any of the persons involved in the finding, or in the investigation of the action or finding, that is the subject of the grievance hearing unless the grievance review officer is the director or chief deputy director of the county. .521 For the purposes of this section, a coworker includes a staff person who has regular direct contact with the staff involved in the finding related to the grievance, and this person is unable to separate themselves as an impartial reviewer.

.52

.53

A staff or other person who is knowledgeable of the child welfare services field and capable of objectively reviewing case information pertaining to the grievance. A staff or other person who is able to conduct a fair and impartial hearing. A grievance review officer shall voluntarily disqualify him or herself and withdraw from any proceeding in which he or she cannot give a fair and impartial hearing or in which he or she has an interest. .541 A claimant may request at any time prior to the close of the record, that the grievance review officer be disqualified upon the grounds that a fair and impartial hearing cannot be held or a decision cannot be rendered. (a) Such request shall be ruled upon by the grievance review officer prior to the close of the record. The grievance review officer's determination is subject to rehearing review and judicial review in the same manner and to the same extent as other determinations of the grievance review officer in the proceeding.

.54

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-10-01 Page 24.2a.

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Regulations

CHILD WELFARE SERVICES PROGRAM GENERAL REQUIREMENTS

31-021 (Cont.)

.542

If, at the beginning or during the hearing, the grievance review officer upholds a party's motion for disqualification, the matter shall be postponed. A postponement due to a disqualification of a grievance review officer shall be considered a postponement with good cause. If, after the hearing, but before the close of the record the grievance review officer determines that disqualification is appropriate, the provisions of Section 31-021.55 shall apply.

.55

A staff or other person who is available to prepare the proposed decision. If the grievance review officer who heard the case is unavailable to prepare the proposed decision, the County Director or his or her designee shall contact the claimant and the county and notify each party that the case is being assigned to another grievance hearing officer for preparation of the decision on the record. .551 The notice shall inform the claimant that her or she may elect to have a new grievance hearing held in the matter, provided that he or she agrees to waive the ten (10) day or sixty (60) day period set forth in Section 31-021.4. A grievance review officer shall be considered unavailable within the meaning of this section if he or she: (a) (b) (c) Is incapacitated. Has ceased employment as a grievance review officer. Is disqualified under Section 31-021.54-542.

.552

.6

The grievance review hearing shall be conducted in the following manner: .61 The grievance hearing shall, to the extent possible, be conducted in a non-adversarial environment. The county, complainant and his or her representatives, if any, shall be permitted to examine all records and evidence related to the countys investigative activities and investigative findings associated with the original referral that prompted the CACI listing, except for information that is otherwise made confidential by law. .621 The county and the complainant shall make available for inspection all records and evidence related to the original referral that prompted the CACI listing, except for information that is otherwise made confidential by law. (a) The county shall redact such names and personal identifiers from the records and other evidence as required by law and to protect the identity, health, and safety of those mandated reporters of suspected child abuse and/or neglect pursuant to Penal Code Section 11167. The county may further redact information regarding the mandated reporter's observations of the evidence indicating child abuse and/or neglect.

.62

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-10-01 Page 24.3

Effective 9/3/10

31-021 (Cont.)

CHILD WELFARE SERVICES PROGRAM GENERAL REQUIREMENTS

Regulations

31-021

CHILD ABUSE CENTRAL INDEX (CACI) GRIEVANCE PROCEDURES (Continued) .622

31-021

The county shall release disclosable information to the complainants' attorney or representative only if the complainant has provided the county with a signed consent to do so. Witness lists shall be available for exchange in advance of the hearing. The county and the complainant shall provide a list of witnesses they intend to call at the grievance hearing at least ten (10) business days prior to the grievance hearing. Failure to disclose evidence or witness lists in advance of the grievance hearing can constitute grounds for objecting to consideration of the evidence or allowing testimony of a witness during the hearing.

.623

.624

.63

Each party and their attorney or representative, and witnesses while testifying, shall be the only persons authorized to be present during the grievance hearing unless all parties and the grievance review officer consent to the presence of other persons. The information disclosed at the grievance hearing may not be used for any other purpose unless otherwise required by law. No information presented at the grievance hearing shall be disclosed to any person other than those directly involved in the matter. Any records and other evidence disclosed by the county to the complainant or the complainant's representative shall be returned to the county at the conclusion of the hearing. All testimony shall be given under oath or affirmation. The grievance review officer has no subpoena power. However, the parties may call witnesses to the hearing and question the witnesses called by the other party. .661 The grievance review officer may limit the questioning of the witness to protect the witness from unwarranted embarrassment, oppression, or harassment. The grievance review officer may prevent the presence and/or examination of a child at the grievance hearing for good cause, including but not limited to protecting the child from trauma or to protect his or her health, safety, and/or well-being. The grievance review officer may permit the testimony and/or presence of a child only if the child's participation in the grievance hearing is voluntary and the child is capable of providing voluntary consent. (a) The grievance review officer may interview the child outside the presence of county staff, complainant and/or any other party in order to determine whether the participation of the child is voluntary, or whether good cause exists for preventing the child from being present or testifying at the grievance hearing.

.64

.65 .66

.662

.663

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-10-01 Page 24.4

Effective 9/3/10

Regulations

CHILD WELFARE SERVICES PROGRAM GENERAL REQUIREMENTS

31-021

31-021

CHILD ABUSE CENTRAL INDEX (CACI) GRIEVANCE PROCEDURES (Continued)

31-021

.83

The county director shall issue a final written decision adopting, rejecting, or modifying the recommended decision within ten (10) business days after the recommended decision is rendered. The final written decision shall explain why a recommended decision was rejected or modified by the county director. A copy of the recommended and final decision shall be sent to the following: .841 .842 .843 The complainant that requested the grievance hearing; The complainant's attorney or representative, if any; and The California Department of Social Services.

.84

.85

If the complainant chooses to challenge the final decision of the county director, the evidence and information disclosed at the grievance hearing may be part of an administrative record for a writ of mandate and kept confidential. The administrative record shall be kept confidential, including, if any of the parties request, that it be filed with the court under seal. The grievance hearing administrative record shall be retained for a length of time consistent with current law, regulations, or judicial order which governs the retention of the underlying record, but not less than one year from the decision date in any circumstance, and shall include the documents and other information accepted as evidence at the hearing.

.86

NOTE: Authority Cited: Sections 10553 and 10554, Welfare and Institutions Code. Reference: Gomez v. Saenz Settlement Agreement and Court Order, Case No: BC284896; Sections 11165.12, 11166(g) and 11167, Penal Code and Sections 827, 10850, and 16503, Welfare and Institutions Code.

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-10-01 Page 25

Effective 9/3/10

31-025

CHILD WELFARE SERVICES PROGRAM GENERAL REQUIREMENTS

Regulations

31-025 .1

ADMINISTRATIVE REVIEWS

31-025

Administrative reviews shall be conducted as specified in Welfare and Institutions Code Sections 366.3, 16503, and 16507.3; and 42 USC 675(6). HANDBOOK BEGINS HERE .11 These statutes identify the children in foster care placement who are to receive administrative reviews and specifies that each child's status is to be reviewed periodically, but no less frequently than once every six months. HANDBOOK ENDS HERE

.2

Administrative reviews shall not be required for children for whom a legal guardian has been appointed as a permanent plan unless the child has been removed from the guardian pursuant to Welfare and Institutions Code Section 300.

NOTE: Authority Cited: Sections 10553 and 10554, Welfare and Institutions Code. Reference: Sections 366.3, 16503, and 16507.3, Welfare and Institutions Code and 42 USC Section 675(6).

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-93-01 Page 26

Issued 7/1/93

Regulations

CHILD WELFARE SERVICES PROGRAM SPECIAL REQUIREMENTS

31-501 (Cont.)

CHAPTER 31-500 SPECIAL REQUIREMENTS 31-501 .1 CHILD ABUSE AND NEGLECT REPORTING REQUIREMENTS 31-501

The county shall report by telephone, fax or electronic submission every known or suspected instance of child abuse and/or neglect as defined in Penal Code Section 11165.6, to law enforcement departments and the District Attorney's Office as specified in Penal Code Section 11166(j). HANDBOOK BEGINS HERE Penal Code Section 11165.6 defines child abuse or neglect to include physical injury or death inflicted by other than accidental means upon a child by another person, sexual abuse as defined in Section 11165.1., neglect as defined in Section 11165.2, the willful harming or injuring of a child or the endangering of the person or health of a child, as defined in Section 11165.3, and unlawful corporal punishment or injury as defined in Section 11165.4. "Child abuse or neglect" does not include a mutual affray between minors. "Child abuse or neglect" does not include an injury caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer. HANDBOOK ENDS HERE

.2

When the county receives a report of known or suspected child abuse and/or neglect that has allegedly occurred in a licensed facility, the county shall notify the licensing office with jurisdiction over the facility, as specified in Penal Code Sections 11166.1 and 11166.2. When the county receives a report of known or suspected child "abuse or neglect in out-of-home care," including a child placed in the home of a relative or non-related extended family member, the county shall create a new referral. .31 The county shall respond to all referrals of "abuse or neglect in out-of-home care" in accordance with the provisions of Section 31-101. A disposition of the investigation shall be recorded in the child's case record.

.3

.32 .4

The county shall not submit a report to the Department of Justice (DOJ) pursuant to Penal Code Section 11169 of every case it actively investigates of known or suspected child abuse that it has determined to be inconclusive or substantiated as defined in Penal Code Section 11165.2. .41 The county shall not submit a report to the DOJ for referrals it investigates and the only allegation substantiated is general neglect or the only incident is a positive toxicology screening at the time of delivery, as specified in Penal Code Sections 11165.2(b) and 11165.13.

.42

The county shall not submit a report to the DOJ for referrals it investigates and that are determined to be unfounded. The county shall ensure that the report submitted to the DOJ is complete and is in conformity with the California Code of Regulations, Title 11.

.43

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-10-01 Page 109.1

Effective 9/3/10

31-501 (Cont.)

CHILD WELFARE SERVICES PROGRAM SPECIAL REQUIREMENTS

Regulations

31-501

CHILD ABUSE AND NEGLECT REPORTING REQUIREMENTS (Continued) HANDBOOK BEGINS HERE .431

31-501

The California Code of Regulations, Title 11, Standard Reporting Form for Reports of Child Abuse Maintained in the Automated Child Abuse System (ACAS) states: (a) The "Child Abuse Summary Report: Form BCIA 8583 is the standard reporting form required to report investigative summaries of suspected incidents of child abuse and severe neglect to ACAS. Reporting agencies shall submit Form BCIA 8583 to DOJ after an active investigation has been conducted and the incident has been determined not to be unfounded. Reporting agencies must obtain and use the most recent version of the BCIA 8583 when submitting the report to DOJ." The BCIA 8583 is maintained by DOJ and may be obtained by contacting that department. HANDBOOK ENDS HERE

.44

The county shall make information received from DOJ pursuant to Penal Code Section 11170(b)(1) available to the persons or agencies as specified in that section.

.5

Within five (5) business days of the county submitting information to the DOJ to list an individual's name on the Child Abuse Central Index (CACI), the county shall provide to that individual written notification, which shall contain the following information and materials: .51 The completed SOC 832, as found in Section 31-003(s)(2), notification that the county has completed an investigation of suspected child abuse and/or severe neglect, which the county has determined to be either inconclusive or substantiated, and has submitted the individual's name to the DOJ for listing on the CACI. .511 The completed SOC 832, as found in Section 31-003(s)(2), notification that the county has completed an investigation of suspected child abuse and/or severe neglect, which the county has determined to be either inconclusive or substantiated, and has submitted the individual's name to the DOJ for listing on the CACI;

.52

The SOC 833, as found in Section 31-003(s)(3), information explaining the individual's right to request a grievance hearing, and the procedures for the hearing. The SOC 834, as found in Section 31-003(s)(4), a request for grievance hearing; .531 A completed SOC 834 shall include the referral number, name of county, complete contact information, date of birth, reason for grievance, information regarding an attorney or representative for the individual if any, and the address where to submit the request for grievance hearing.

.53

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-10-01 Page 109.2

Effective 9/3/10

Regulations

CHILD WELFARE SERVICES PROGRAM SPECIAL REQUIREMENTS

31-501

31-501

CHILD ABUSE AND NEGLECT REPORTING REQUIREMENTS (Continued)

31-501

.54

The SOC 832, 833 and 834 shall be mailed to the last known address where the notice and request for grievance are most likely to be received by the individual.

.6

An individual wishing to challenge his or her referral to the CACI may request a grievance hearing utilizing the procedures under Section 31-021. The county may initiate an internal review relating to the matter identified in the request prior to the hearing. Where the county's finding of inconclusive or substantiated for abuse and/or severe neglect is changed to unfounded as a result of the grievance hearing or internal review, or a judicial determination of factual innocence of all the investigated allegations that supported the county's decision to refer the individual's name to the DOJ for listing on CACI, the county shall within five business days submit to the DOJ a revised DOJ form BCIA 8583 containing the change in finding. .71 Where the county's finding of inconclusive or substantiated child abuse and/or neglect is changed to a finding other than unfounded as a result of the grievance hearing, the county shall within five business days submit to the DOJ a revised Form BCIA 8583 containing the change in finding.

.7

.8

The county shall document the outcome of the grievance hearing and any change in the finding of an allegation, if any, within the child's case record.

NOTE: Authority Cited: Sections 10553 and 10554, Welfare and Institutions Code. Reference: Gomez v. Saenz Settlement Agreement and Court Order, Case No: BC284896 and Sections 11165.12, 11165.5, 11165.6, 11166, 11166.1, 11166.2, 11166.3, 11169, and 11170(b)(1), Penal Code.

CALIFORNIA-DSS-MANUAL-CWS MANUAL LETTER NO. CWS-10-01 Page 109.3

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